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Posts Tagged ‘co-parent adoption’

Lesbian Co-Parent Seeks Expedited Supreme Court Review of Alabama Refusal to Recognize Adoption

Posted on: November 22nd, 2015 by Art Leonard No Comments

Attorneys for V.L., the adoptive mother of children born to her former same-sex partner, have asked the U.S. Supreme Court (SCOTUS) to review an erroneous decision by the Alabama Supreme Court to refuse to recognize the adoption that was approved by the Georgia Superior Court, and have also asked SCOTUS to restore her visitation rights while the appeal is pending by suspending the Alabama Supreme Court’s order in the case.  The petitions were filed on November 16.

V.L., who is represented by the National Center for Lesbian Rights and cooperating attorneys from Jenner & Block LLP (Washington, D.C.), with local counsel Traci Owen Vella and Heather Fann in Birmingham, Alabama, lived with E.L. in a seventeen-year relationship.  In May 2000 V.L. changed her last name to E.L.’s last name, and the women decided to have and raise children together.  E.L. subsequently gave birth to one child in 2002 and twins in 2004 through donor insemination.  The women played equal parental roles in raising the kids.  In order to provide more security to their legal relationship, they rented a residence in Atlanta and obtained a legal adoption from the Georgia (Fulton County) Superior Court so that V.L. would be the legal parent of the children.  The Georgia judge construed that state’s adoption law to allow second-parent adoptions without terminating the birth mother’s parental rights, as several other Georgia trial courts have also done.  So far, there is no Georgia appellate ruling against such adoptions, and the Georgia Supreme Court has not addressed the issue directly.

After the adoption, the women returned to Alabama and resumed living there are a family until the women separated and E.L. eventually cut off V.L.’s contact with the children.  V.L. registered the adoption with an Alabama court and filed an action seeking custody or visitation.  The Alabama trial and appellate courts concluded that V.L. must be recognized as an adoptive parent entitled to seek a determination of custody or visitation, with E.L. appealing every step of the way, until she won a reversal from the Alabama Supreme Court on September 18.

The lower Alabama courts correctly applied the Full Faith and Credit Clause (FFCC) of the U.S. Constitution, which requires that the courts of one state accord “full faith and credit” to the judgments issued by courts in other states.  More than a century of well-established court precedents provide that courts may not refuse to accord full faith and credit to a sister state court’s ruling because of a disagreement over the merits of that ruling.  The limited exception to full faith and credit would be cases where the court that issued the judgment did not have jurisdiction to do so, either because the court was not authorized to decide such cases or because the parties were not properly within the jurisdiction of the court.  In this case, the Georgia Superior Court had specifically concluded that it had jurisdiction over the parties and the subject matter of the case.  Indeed, Georgia statutes provide that the Superior Court has jurisdiction over all adoption proceedings.

A majority of the Alabama Supreme Court, however, departing from established constitutional precedents, decided based on its own reading of Georgia’s adoption statute that the Georgia law could not properly be construed to allow second-parent adoptions.  Even though the Georgia appellate courts have never specifically disapproved such adoptions, and courts of several other states have approved them in the context of similarly-worded adoption statutes, the Alabama court decided that the Georgia Superior Court’s departure from the Alabama Supreme Court’s interpretation of the Georgia adoption statute is a “jurisdictional” fault that justifies refusing to recognize the adoption.

This startling result drew a sharp dissent from a member of the court, who wrote that it “creates a dangerous precedent that calls into question the finality of adoptions in Alabama: Any irregularity in a probate court’s decision in an adoption would now arguably create a defect in that court’s subject matter jurisdiction.”

Petitioning SCOTUS, V.L. argued that the Alabama Supreme Court’s departure from established constitutional precedent, in general contradiction with more than a century of precedent and in direct contradiction of the Denver-based U.S. 10th Circuit Court of Appeals’ 2007 ruling, Finstuen v. Crutcher, 496 F.3d 1139, requires a resolution of whether state courts are permitted to inquire into the merits of rulings by sister state courts in deciding whether to accord full faith and credit to those judgments, particularly in adoption cases where the result would be to interfere with family relationships that had been established and then legally ratified in completed adoption proceedings.   In the Finstuen case, the 10th Circuit invalidated an Oklahoma statute that barred recognition of same-sex couple adoptions, holding that the statute violated the obligation of Oklahoma courts under the full faith and credit clause to recognize such adoption judgments.

Under the rulings of the Alabama trial and intermediate appellate courts V.L. had been enjoying visitation rights with the children on a temporary basis while E.L. pursued her appeal.  Shortly after its ruling, the Alabama Supreme Court suspended that visitation.  In addition to her petition for review, V.L. filed a petition with SCOTUS requesting a stay of the Alabama Supreme Court order and restoring her visitation rights while this appeal is pending.  This is in accord with her argument that she is the legal adoptive parent of those children and thus is entitled to continued contact of some sort unless E.L. can show that she is unfit or poses a danger to the children.  Because of the appeals of the recognition rulings in this case, there has not yet been a determination by the Alabama trial court whether it is in the best interest of these children for their adoptive mother to have custody or visitation.  By its erroneous decision that V.L. is not a parent with standing to contest these issues, the Alabama Supreme Court has decreed that there be no inquiry into the best interest of the children — an inquiry that should be at the heart of custody and visitation decisions when parents split up.

New York Surrogate Court Approves Gay Father’s Adoption of Child as Co-Parent with Straight Mother

Posted on: January 5th, 2014 by Art Leonard No Comments

There’s a subtext to New York County Surrogate Court Judge Rita Mella’s adoption decision, Matter of the Adoption of a Child Whose First Name is G, which is published January 6, 2014, in the New York Law Journal.  The man petitioning to be adoptive parent of G, a little girl born in Ethiopia who was adopted in 2011 by the man’s close friend, is gay, and the child’s adoptive mother is not gay.  Therein lies a story told only incompletely by the court, which never mentions the sexual orientation of the parties.  Matter of G, NYLJ 1202635384850, at *1 (Surr., NY, Decided December 27, 2013).

KAL, the mother, and LEL, the father, as the court identifies the parents, met in 2000 and became great friends, working together over a number of years.  KAL confided in LEL that she wanted to have a child using donor insemination, and LEL volunteered to be the known sperm donor.  They tried to conceive a child in this way, both through insemination and in vitro fertilization, without success, and then decided to pursue the overseas adoption route.  In 2011, KAL adopted a little girl in Ethiopia, where unmarried adult partners cannot jointly adopt.  But LEL went with her to Ethiopia for the adoption proceedings, and ever since has participated equally in parenting the child.  KAL lives in Brooklyn and registered the adoption there.  LEL lives in Manhattan, and petitioned for a “second-parent adoption” in the New York County Court.  The child, identified in the opinion as G, alternates times in the homes of her two parents, who remain warm friends and committed to raising her jointly.  A social worker did the necessary home study and recommended that allowing the adoption was in the best interest of the child.

The issue for the court was whether LEL can adopt, consistent with the requirements of New York’s adoption statute.  The Court of Appeals ruled in 1995 that cohabiting unmarried different-sex couples and cohabiting same-sex couples could adopt.  It was not until 2010 that the legislature adopted an amendment to the statute proposed by State Senator Tom Duane to codify this decision, by adding to the statute that “intimate partners” can adopt a child.  The understanding was that “intimate partners” was a way to add to the adoption statute unmarried partners who are raising a child together.

Looking at the legislative history and purpose of the statute in light of the 1995 court ruling, as well as how the terms “intimate partner” and “intimate relationship” have been dealt with in other statutes and other jurisdictions, Surrogate Mella came to the conclusion that this case would be covered by the statute.  She particularly noted a comment from Governor David Paterson’s statement released when he signed the statute into law, making clear that the intent of the amendment was not to narrow the class of people entitled to adopt, but to expand it, and that the legislature made clear that the “best interest of the child” was to be the overriding factor in considering whether to approve adoptions.

“The legislative history of the 2010 amendment to DRL §110 thus supports the interpretation of the phrase ‘intimate partners’ to include a relationship such as the one we have here: very close, loving friends, who have
an intimate connection, which includes planning for and raising a child together,” wrote Surrogate Mella. “Indeed, the experience of jointly and intentionally parenting a child is itself of the most intimate nature.”

She also found that this interpretation would be consistent with the 1995 ruling, Matter of Jacob, that the amendment was intended to codify in the statute.  “Nothing in Jacob suggests that standing is limited to unmarried persons in a romantic relationship with another unmarried person who is the child’s parent, and there is no rationale for excluding unmarried individuals who are committed to raising a child together with another unmarried person from having standing to adopt under DRL §110,” she wrote.

After reviewing the way these two adults have arranged their lives around the raising of this child, and the recommendation in the social worker’s report, Mella concluded that it would be in the best interest of the child to approve this adoption.   She especially noted how having both adults as legal parents would provide tangible benefits to G, including being covered by LEL’s insurance and entitled to various other benefits and legal protections as the legally-recognized daughter of the man who has acted as her father ever since she was adopted by KAL.

“KAL and LEL are two loving adults who are both functioning as G.’s parents and have a relationship with each other built on a solid, decade-plus friendship,” she wrote, continuing, “Even though LEL and KAL have been raising G., to date, solely KAL has been her legal parent. Granting the present petition serves to recognize that LEL and KAL are together and individually permanently committed to raising G. The court finds that it is clearly in G.’s best interests to have LEL become her legal parent.”

New York attorney Judith Turkel, who represents LEL in this adoption case, provided us with an advance copy of the court’s opinion and filled in some of the details missing from the opinion.